Unformatted text preview: Civil Liberties: Protecting Individual Rights Chapter 4 2007 Susan Roomberg, SKR Associates 1 Related Links Video Theater: The Constitution: Gove Debate: National security is more impo Soapbox: Bush's 2004 State of the Un Video Theater: Grand and Petit Juries 2007 Susan Roomberg, SKR Associates 2 Civil Liberties The colonists feared tyrannical government Many states refused to ratify the Constitution without the guarantee of a Bill of Rights. The Bill of Rights lists some of our civil liberties, or natural rights, that cannot be taken away by the government Bill of Rights does not protect people from state governments Fourteenth Amendment does 2007 Susan Roomberg, SKR Associates 3 Civil Liberties in an Untidy World Civil liberties are a balancing act between the competing rights of individuals. Individual rights vs. the collective needs of society and the demands of the majority
Print by Currier& Ives commenting on President Zachary Taylor's attempts to balance southern and northern interests on the question of slavery in 1850. From the Prints and Photographs Division of the Library of Congress
4 2007 Susan Roomberg, SKR Associates Freedom of Expression Most basic democratic right Not absolute can be denied National security Damages another Actively protected by the courts 2007 Susan Roomberg, SKR Associates 5 The Early Period: The Uncertain Status of the Right of Free Expression Congress and the courts willing to restrict speech considered "dangerous" to the government The Sedition Act of 1798 criminalized false or malicious stories about the President or other officials Schenck v. United States (1919) allowed restrictions if remarks present a "clear and present danger" to the peace or public order
Literary Digest, 2/7/20. Originally from the Jersey City Journal (Satterfield). 2007 Susan Roomberg, SKR Associates 6 The Modern Period: Protecting Free Expression After WWII, courts more restrictive of the government's ability to prohibit speech Allowed restrictions on Communists in the 1950s Then moved to Justice Harlan Fiske Stone's position free speech is the basis of liberty, so should be protected as if it had a "preferred position" Current standard is government must show direct and immediate harm before it can prohibit citizens from speaking out or assembling 2007 Susan Roomberg, SKR Associates 7 Symbolic Speech Gestures, actions, movements, articles of clothing all "speech" when used to express political opinion Protections less substantial than for verbal speech Texas v. Johnson (1989) state laws prohibiting flag burning unconstitutional limitations on free speech 2007 Susan Roomberg, SKR Associates 8 Press Freedom and Prior Restraint No censorship except under extreme circumstances New York Times v. United States (1971) The Pentagon Papers Supreme Court ruled text could be published, because public had a right to know the information Exceptions to this rule include Reporting on military actions during wartime Publication of information from some past and present government employees involved in national security 2007 Susan Roomberg, SKR Associates 9 Free Expression and State Governments Bill of Rights initially applied only to federal government The Fourteenth Amendment says states can't deprive someone of their life, liberty or property without due process During the 20th century, the Supreme Court began making rulings that applied the Bill of Rights to the actions of state government 2007 Susan Roomberg, SKR Associates 10 The Fourteenth Amendment and Selective Incorporation Selective incorporation is the process whereby Supreme Court rulings ensure a right can be protected by the federal government from infringement by the states
11 2007 Susan Roomberg, SKR Associates 2007 Susan Roomberg, SKR Associates 12 Limiting the Authority of the States to Restrict Expression Incorporation means states limited in ability to restrict expression Can only limit speech if, in its advocating the unlawful use of force, the speech will cause an "imminent lawless action" (Brandenburg v. Ohio (1969)) Speech that is simply violent (even hate speech) can't be limited But, can have enhanced punishments if language leads to unlawful action (hate crimes) 2007 Susan Roomberg, SKR Associates 13 Libel and Slander Free speech is not without consequences Libel is written defamation of a person's character, reputation, business, or property rights. Slander is spoken words that falsely damage a person's reputation. 2007 Susan Roomberg, SKR Associates 14 Freedom of the Press and Libel The printed media have some protection from libel charges For public figures, a charge of libel must prove actual malice (New York Times Co. vs. Sullivan (1964)) Persons not "public figures" have more protections, since have more of an expectation of privacy 2007 Susan Roomberg, SKR Associates 15 Obscenity SC has had trouble with the definition, but in Miller v. California (1973) said Must offend "contemporary community standards" of a "reasonable person" Content must be of a "patently offensive type" What adults view at home is not a crime except Child pornography is per se obscene Link to Citizen's Guide to Federal Obscenity Laws, Departm Depart 2007 Susan Roomberg, SKR Associates 16 Recent Trends Supreme Court rulings that do uphold restrictions are to protect children However, in Free Speech Coalition v. Ashcroft (2002) the Court held that some provisions against child porn overly broad Officials must find least restrictive method of keeping materials from kids 2007 Susan Roomberg, SKR Associates 17 Pornography on the Internet Congress tried to regulate pornography with the Child Online Protection Act of 1998, which required an ageverification system for indecent content Supreme Court said restrictions were wellintentioned but Congress must find less restrictive means to goal
18 2007 Susan Roomberg, SKR Associates Freedom of Religion Roots in England and ideas of John Locke Two components: Free exercise clause Establishment clause 2007 Susan Roomberg, SKR Associates 19 The Establishment Clause Government may not favor one religion over another Government may not support having a religion over no religion Interpreted as meaning a "wall of separation" between government and religion 2007 Susan Roomberg, SKR Associates 20 The phrase, "a wall of separation between church and state," was contained in a letter from Thomas Jefferson to the Danbury Baptists. American courts have used the phrase to interpret the Founders' intentions about the relationship between government and religion. Holograph draft letter, 1802 Jefferson Papers, Manuscript Division, Library of Congress (163a) 2007 Susan Roomberg, SKR Associates 21 Establishment Clause Issues School prayer Religious displays on public property School vouchers Scholarships for religious careers General opinion of the Supreme Court has been that government should avoid excessive entanglement with religion 2007 Susan Roomberg, SKR Associates 22 Free Exercise Clause Americans are free to believe what they wish with regard to religion However, not always free to act upon those beliefs
In 1990, the Supreme Court held that Oregon, under the state's narcotics laws, could deny unemployment compensation to two Native Americans who were fired for smoking peyote as part of tribal religious rituals.
Library of Congress 2007 Susan Roomberg, SKR Associates 23 Issues With Free Exercise Government can limit free exercise if religious practices work against public policy Teaching creationism in school vs. evolution Medical treatment for kids whose parents have religious objections But freedoms remain, such as limited Amish schooling so kids can work 2007 Susan Roomberg, SKR Associates 24 The Right of Privacy No explicit right to privacy in Constitution Supreme Court did not begin making privacy rulings until the 1960s Griswold v. Connecticut (1965) Supreme Court ruled that a "zone of (personal) privacy" can't be denied 47 Abortion Roe v. Wade (1973) privacy rights include abortion rights Later rulings allow a more restrictive view of the rights outlined in Roe Webster v. Reproductive Health Services (1989) states can ban abortions in public hospitals and ban state funding for abortions Planned Parenthood v. Casey (1992) - states can require pre-abortion counseling, waiting periods, and parental/judicial permission for minors 2007 Susan Roomberg, SKR Associates 26 Sexual Relations Among Consenting Adults Attitudes toward sexual relations between partners of the same gender have changed over the years, especially recently Bowers v. Hardwick (1986) - right to privacy does not extend to homosexual acts Lawrence & Garner v. Texas (2003) - privacy rights of homosexuals protected by the due process clause of the 14th Amendment 2007 Susan Roomberg, SKR Associates 27 The Continuing Issue of Privacy Rights Right to privacy covers many areas Personal medical and financial information The "right to die," including assisted suicide Protesters can't block access to abortion clinics. 2007 Susan Roomberg, SKR Associates 28 Rights of a Person Accused of a Crime Due Process is the name for the legal protections set up to preserve individuals' rights Procedures authorities must follow before punishing someone These protections are in the Constitution and Bill of Rights, but are subject to interpretation 2007 Susan Roomberg, SKR Associates 29 Constitutional Protections Article I, Section 9 writ of habeas corpus Fourth Amendment no unreasonable search and seizure without probable cause Fifth Amendment no double jeopardy; no self-incrimination; no loss of life, liberty or property without due process Fifth Amendment defendant must be indicted by a grand jury 2007 Susan Roomberg, SKR Associates 30 Constitutional Protections Sixth Amendment defendant must have legal counsel, be able to confront witnesses, have a speedy trial, and have a trial by jury for a criminal case Eighth Amendment no excessive bail or fines, no cruel or unusual punishment of those convicted of crimes Fourteenth Amendment no one can be deprived of life, liberty or property without due process 2007 Susan Roomberg, SKR Associates 31 Selective Incorporation of Procedural Rights Most of our history protections only at federal level Civil Rights movement in 1960s exposed fact rights administered unequally Subsequent Supreme Court rulings incorporated procedural rights
32 Martin Luther King, Jr. led civil rights marchers from Selma to Montgomery, 2007 Susan Roomberg, SKR Associates Alabama. 2007 Susan Roomberg, SKR Associates 33 Miranda Rights Miranda v. Arizona (1966) - police must tell suspects who are in custody and being questioned
They can remain silent; What they say can be used against them They have the right to have an attorney present, either retained or appointed Based on the Fifth and Sixth Amendments 2007 Susan Roomberg, SKR Associates Ernesto Miranda mug shot. Arizona Department of Library Archives and Public Records, Phoenix, AZ.
34 Exclusionary Rule Exclusionary Rule a policy or law forbidding the admission at trial of illegally seized evidence Not absolute Good faith exception Clerical error exception U.S. Marshal Multi-Agency Team Knock and Announce "Operation Falcon II" April 17-23, 2006 First extended to state proceedings in Mapp v Ohio 1961) Recent changes: "knock and announce" rule
35 2007 Susan Roomberg, SKR Associates Habeas Corpus Appeals Defendants convicted in state court may appeal to the federal court system if they believe there was a constitutional error in their trial But only after all state appeals exhausted 2007 Susan Roomberg, SKR Associates 36 Crime, Punishment, and Police Practices Unfortunately, theory and practice of procedural guarantees may differ Racial profiling Uneven sentencing Differing opinions as to what constitutes "cruel and unusual punishment"
Atkins v. Virginia (2002) Roper v. Simmons (2005) Sentencing issues/pressure for harsher sentences 2007 Susan Roomberg, SKR Associates 37 Rights and the War on Terrorism When we are at war, courts usually allow the government more authority Japanese internment camps Crowd behind barbed wire fence at the Santa Anita Assembly Center in C , 1942. Photograph by Julian F. Fowlkes. Copyprint. U.S. Signal Corps, Wartime Civil Control Administration, Prints and Photographs Division (3) 2007 Susan Roomberg, SKR Associates 38 Issues in The War on Terrorism Detention of enemy combatants at Guantanamo Bay, Cuba Hamadi v. Rumsfeld (2004) "enemy combatant" who is U.S. citizen entitled to challenge detention in U.S. court Hamdan v. Rumsfeld (2006) - detainees protected by U.S. Uniform Code of Military Justice and Geneva Convention Surveillance of suspected terrorists U.S. Patriot Act of 2001 (most parts renewed in 2006) 2007 Susan Roomberg, SKR Associates 39 The Courts and a Free Society Most Americans support rights and freedoms in the abstract...but when faced with specific circumstances, that support may change Courts strive to protect those rights, but also are affected by the public mood Generally are more protective than elected officials or general public 2007 Susan Roomberg, SKR Associates 40 ...
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